2016 (10) TMI 661 - AT - Customs

Imposition of ADD - purified terephthalic acid - import from China PR, EU, Korea RP and Thailand - N/N.23/2015 - CUS (ADD) dated 27/05/2015 - status of MCPI as domestic industry - 66% of shares of this unit is with Mitsubishi Chemical Corp., Japan who also hold 40% of Samnam Petrochemicals who is an exporter of subject goods to India - Held that - During POI Samnam s export of subject goods to India is an exception and not a regular trading activity. Further, Mitsubishi Chemical Corp., Japan does not have controlling effect on the activities of Samnam Korea. We are in agreement with the DA that the facts of the case indicate that no undue benefit accrued MCPI out of the above share holding arrangement in case of levy of AD duty. After noting the detailed reasoning recorded by the DA we find that there is no justification for treating MCPI as not eligible for DI. Faulty analysis of material injury to DI with reference to IOCL pricing - Held that - IOCL has neither supported nor opposed the application for anti-dumping investigation. The other 2 producers of subject goods in India account for more than 50% of production. Hence, the DA is correct in analyzing the data furnished to arrive at conclusion. The absence of support by IOCL is not relevant for the investigation. The sale price of IOCL being lesser than the DI has not been substantiated during investigation by the DA. On the impact of inter-se competition among domestic producers, the DA found that the injury to DI not attributable to the same as nothing relevant was brought before the authority during investigation. In appeal also we find no evidence to this effect. Principles of natural justice - Held that - In the name of natural justice a situation cannot be created which will defeat the very process of intended investigation and remedy thereafter. If appellant s plea is accepted, it follows a second hearing is to be considered for all parties, who after oral hearing have to submit written note of their comments which has to be made available to all the other parties who will insist on further oral hearing and written comments on the issues raised which has to be made known to all interested parties and the cycle will continue indefinitely without any possible conclusion by the DA. The initiation of investigation for AD duty was notified with supporting applications. All interested parties give comments and were personally heard. Thereafter, upon analysis of all facts and comments after due verification the DA discloses the proposals. Again comments are called for. Finally, the DA notifies his Final Findings. This procedure has been followed by the DA. We find no legal infirmity or denial of natural justice by the DA in this case. Injury analysis being arbitrary and on use of excessive discretion by DA - Held that - No specific instance of improper discretionary decision was brought to our notice. As a statutory authority vested with the power to analyse and arrive at a clear finding, the DA acted within his mandate. Adverse finding cannot be ipso-facto basis of allegation of discretionary excess. ADD rightly imposed - appeal rejected - decided against appellant.

Summary

Issues:
- Delay in filing appeals
- Status of MCPI as domestic industry
- Analysis of material injury to DI
- Violation of principles of natural justice
- Use of excessive discretion by DA

Delay in filing appeals:
The appeals were filed 189 days after the Final Findings were issued. The appellants had approached the Delhi High Court via a writ petition, and upon court order, filed appeals before the Tribunal. The delay was condoned, and the appeals were taken up for further disposal.

Status of MCPI as domestic industry:
The issue revolved around MCPI's status as a domestic industry due to its shareholding structure with Mitsubishi Chemical Corp., Japan, and its relationship with an exporter of subject goods. The Tribunal examined the factual and legal aspects, concluding that no undue benefit accrued to MCPI. The DA's detailed reasoning supported the decision to treat MCPI as eligible for domestic industry status.

Analysis of material injury to DI:
The DA's analysis of material injury to DI, particularly concerning pricing and competition among domestic producers, was challenged. The Tribunal found that the DA's examination was thorough and justified, dismissing the appellants' arguments for lack of evidence supporting their claims.

Violation of principles of natural justice:
The appellants alleged a violation of natural justice, citing the lack of a post-disclosure hearing. The Tribunal noted that the DA followed the procedures set out in the AD Rules, conducting a public hearing and providing opportunities for submissions and comments. Rejecting the appellants' plea for another hearing, the Tribunal found no denial of natural justice in the DA's actions.

Use of excessive discretion by DA:
The final objection centered on the DA's alleged arbitrary injury analysis and excessive discretion. The Tribunal reviewed the DA's injury analysis and found no evidence of improper discretionary decisions. Citing relevant case laws, the Tribunal upheld the DA's actions as within the statutory mandate, dismissing the appellants' claims of discretionary excess.

In conclusion, after thorough consideration of the issues raised in the appeals and the Final Findings, the Tribunal found no merit in the appeals. Consequently, all appeals against the impugned Findings and Customs notification were rejected, and linked miscellaneous applications were disposed of.